9.1 Criminal Attempt & Impossibility

Criminal Attempt & Impossibility

Doctrinal Foundation: Inchoate offenses—attempt, solicitation, and conspiracy—punish conduct that is preparatory or directed toward the commission of a substantive crime, even when the ultimate harm never materializes. On the California First-Year Law Students' Examination (FYLSE), inchoate crimes are tested with meticulous precision regarding required mental states and actus reus thresholds. An attempt occurs when an individual, with the specific intent to commit a target crime, performs an overt act that goes beyond mere preparation in furtherance of that objective. Mastery of attempt requires navigating three major exam traps: the unwavering rule that attempt always requires specific intent, the sharp divergence between common law proximity tests and the Model Penal Code (MPC) substantial step doctrine, and the crucial distinction between legal and factual impossibility.

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I. Criminal Attempt: Elements & Doctrinal Foundation

At common law and under modern statutory codes, criminal attempt consists of two indispensable elements:

1. Mens Rea: The specific intent to commit the target substantive crime (or bring about the prohibited result); and
2. Actus Reus: An overt act in furtherance of that specific intent that extends beyond mere preparation and approaches perpetration.

                          ┌──────────────────────────────────────┐
                          │     Two Elements of Attempt          │
                          └──────────────────┬───────────────────┘
                                             │
                  ┌──────────────────────────┴──────────────────────────┐
                  ▼                                                     ▼
        [Specific Intent]                                       [Overt Actus Reus]
- Must intend to complete target crime                - Must go beyond mere preparation
- Always specific intent, even if target is not       - Common Law: Proximity tests (near completion)
- Cannot attempt reckless / negligent crimes          - MPC § 5.01: Substantial step corroborating intent

The Fundamental Principle of Inchoate Liability

Attempt serves a dual social purpose: it permits law enforcement to intervene before actual physical injury or property destruction takes place, while penalizing individuals who have demonstrated dangerous criminal resolve. However, because criminal law does not punish unexpressed thoughts or mere wicked intentions, liability attaches only when the actor translates culpable intent into an overt, legally sufficient physical act.

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II. The Mens Rea of Attempt: The Specific Intent Trap

The mental state required for attempt is one of the most frequently tested principles on the FYLSE. The universal rule is uncompromising: Attempt is ALWAYS a specific intent crime.

1. The Result-Oriented Intent Requirement

To be guilty of attempt, the defendant must act with the conscious purpose or specific design to bring about every element of the target crime—most importantly, the prohibited result. It is legally irrelevant that the completed substantive offense requires only general intent, malice, criminal negligence, or strict liability.

• Target Crime Is General Intent (e.g., Battery, Arson): Completed battery requires only general criminal intent or unlawful application of force. However, attempted battery requires the specific intent to cause physical injury or offensive contact.
• Target Crime Is Strict Liability (e.g., Statutory Rape): Completed statutory rape requires no mens rea regarding the victim's age. However, to be convicted of attempted statutory rape, modern jurisdictions require proof that the defendant actually intended to have intercourse with a person known or believed to be underage.

2. Inability to Attempt Reckless, Negligent, or Unintentional Crimes

Because attempt demands the conscious purpose to achieve the forbidden result, an individual cannot logically or legally attempt a crime defined by recklessness, negligence, or unintended consequences:

• No Attempted Involuntary Manslaughter: Involuntary manslaughter involves an unintentional death caused by criminal negligence or reckless conduct. One cannot intend an unintentional outcome.
• No Attempted Depraved-Heart Murder: Common law murder can be established by express malice (intent to kill) or implied malice (depraved-heart reckless indifference, intent to inflict grievous bodily harm, or felony murder). However, attempted murder requires express malice—the specific intent to kill. Firing a weapon into a crowded room with reckless indifference supports a murder conviction if someone dies, but if no one dies, the shooter cannot be convicted of attempted murder because there was no specific intent to kill.
• No Attempted Felony Murder: One cannot attempt a killing that is deemed murder solely by operation of the felony-murder rule without an independent specific intent to cause death.

[!IMPORTANT] The FYLSE Attempted Murder Trap: If a fact pattern states that Defendant fired a bullet into a crowd wanting to injure or frighten someone, or acting with wanton disregard for life, and the victim survives, Defendant is NOT guilty of attempted murder. Defendant is guilty of aggravated assault, battery, or reckless endangerment, but attempted murder fails for lack of specific intent to kill.

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III. The Actus Reus of Attempt: Proximity Tests vs. MPC Substantial Step

The dividing line between innocent (or non-actionable) mere preparation and punishable criminal attempt has produced competing legal standards across American jurisdictions.

                                 ┌─────────────────────────────┐
                                 │    The Actus Reus Spectrum  │
                                 └──────────────┬──────────────┘
                                                │
         ┌──────────────────────────────────────┼──────────────────────────────────────┐
         ▼                                      ▼                                      ▼
  [Mere Preparation]                   [MPC Substantial Step]                 [Common Law Proximity]
- Gathering tools / planning           - Conduct strongly corroborative       - Physical / Dangerous proximity
- Purchasing materials                   of criminal purpose                  - Near the final consummation
- Inadequate for Attempt               - ATTEMPT LIABILITY ATTACHES           - ATTEMPT LIABILITY ATTACHES

1. Common Law Proximity Tests

The common law focused on how much remained to be done before the substantive crime would be complete. Courts applied various restrictive tests to ensure an actor was within dangerous proximity of success:

• The Physical Proximity Test: The defendant must have approached very close to the completion of the crime in terms of physical time and space (e.g., standing outside the door with a crowbar in hand, or raising a rifle to the shoulder).
• The Dangerous Proximity Test (Justice Holmes): Evaluates the gravity of the contemplated harm, the degree of apprehension created, and the physical closeness to the objective. The greater the gravity of the crime, the earlier attempt liability might attach.
• The Indispensable Element Test: Emphasizes whether the defendant has gained control over every indispensable element or instrumentality necessary to consummate the offense (e.g., obtaining the key or the combination to the vault).
• The Res Ipsa Loquitur / Unequivocality Test: The defendant's conduct, viewed in isolation without reference to confessions, must unequivocally speak for itself and manifest an unmistakable criminal intent.

2. The Model Penal Code "Substantial Step" Standard (§ 5.01)

The Model Penal Code expressly abandoned common law proximity tests, shifting the analytical focus from what remains to be done to what the actor has already accomplished.

• The Rule: An actor is guilty of attempt if they purposely do or omit to do anything that constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime.
• Corroboration Requirement: The substantial step must be strongly corroborative of the actor's criminal purpose.
• Statutory Examples of Substantial Steps (MPC § 5.01(2)):
  1. Lying in wait, searching for, or following the contemplated victim;
  2. Enticing or seeking to entice the contemplated victim to go to the place contemplated for its commission;
  3. Reconnoitering (casing) the place contemplated for the commission of the crime;
  4. Unlawful entry into a structure, vehicle, or enclosure where the crime will occur;
  5. Possession of materials specially designed for unlawful use (e.g., bomb-making components or lock-picking tools adapted for the burglary);
  6. Possession, collection, or fabrication of materials to be employed in the commission of the crime at or near the place of commission, where such possession serves no lawful purpose;
  7. Soliciting an innocent agent to engage in conduct constituting an element of the crime.

Common Law Proximity vs. MPC Substantial Step Comparison

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IV. Impossibility Defenses: Legal vs. Factual Impossibility

Few topics create more confusion on bar examinations than the distinction between factual impossibility and legal impossibility. The bar examiners test this doctrine frequently through tricky hypotheticals.

                         ┌──────────────────────────────────────┐
                         │   Impossibility Defense Framework    │
                         └──────────────────┬───────────────────┘
                                            │
                  ┌─────────────────────────┴─────────────────────────┐
                  ▼                                                   ▼
       [Factual Impossibility]                             [True Legal Impossibility]
- External physical fact prevents crime              - Completed act violates NO criminal statute
- Facts unknown to the actor                         - Actor mistakenly believes conduct is illegal
- Empty pocket, unloaded gun, decoy                  - Hunting on Tuesday when season is open
- NEVER A DEFENSE TO ATTEMPT                         - VALID DEFENSE (No Crime Exists)

1. Factual Impossibility (NEVER A DEFENSE)

• Rule: Factual impossibility arises when the defendant's intended end constitutes a recognized crime, but the substantive crime cannot be completed because of an extrinsic physical circumstance or factual condition unknown to the actor.
• Legal Effect: Factual impossibility is NEVER a defense to a charge of attempt.
• Analytical Test: Ask: "Had the physical facts been precisely as the defendant subjectively believed them to be, would a crime have been completed?" If the answer is YES, the defense is factual impossibility, and the defendant is guilty of attempt.
• Classic Scenarios on the FYLSE:
  • Pickpocket thrusts a hand into an empty pocket (guilty of attempted larceny);
  • Assassin shoots into a bed where the victim normally sleeps, but the victim is sleeping in the guest room (guilty of attempted murder);
  • Shooter pulls the trigger of a revolver pointed at a rival, unaware that the gun is unloaded or the firing pin is broken (guilty of attempted murder);
  • Buyer purchases baking soda or confectioner's sugar from an undercover police officer believing it to be pure cocaine (guilty of attempted possession of a controlled substance).

2. True Legal Impossibility (VALID DEFENSE)

• Rule: True legal impossibility occurs when the defendant engages in conduct that they subjectively believe to be criminal, but even if the conduct is completed exactly as planned, it does not constitute a crime under any existing law or statute.
• Legal Effect: True legal impossibility is a COMPLETE DEFENSE to attempt.
• Analytical Test: The principle of legality dictates that without a law, there can be no crime (nullum crimen sine lege). The state cannot punish a person merely for possessing an evil mind or harboring a mistaken belief regarding the criminal code.
• Classic Scenarios on the FYLSE:
  • A hunter shoots a deer on Tuesday believing state law makes Tuesday hunting a felony, but the state legislature repealed that statute two months prior (no attempted illegal hunting);
  • A traveler purchases antique coins overseas and smuggles them into the country believing they carry an import tariff, but the tariff schedule exempts antique coins (no attempted customs evasion);
  • A passenger buys prescription vitamins believing they require a medical license to transport across state lines, but federal law permits unencumbered transport (no attempt).

3. Inherent Impossibility

Where the means employed by the actor are so absurd, scientifically preposterous, or completely inadequate that no rational person would expect the harm to result (e.g., sticking pins into a voodoo doll to kill an enemy, or reciting an ancient curse), the conduct is termed inherently impossible. At common law, no attempt liability attaches due to the total absence of real-world danger. Under MPC § 5.05(2), the court has discretion to dismiss or downgrade the prosecution if the actor's conduct is so inherently unlikely to result in the crime that neither the actor nor the conduct presents a public danger.

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V. Abandonment & Renunciation

When an actor sets out to commit a crime, crosses the line into attempt, but then ceases conduct before the target crime is completed, can the actor raise the defense of abandonment?

1. Traditional Common Law Rule (NO DEFENSE)

At common law, voluntary abandonment is NO DEFENSE once the defendant has committed an overt act sufficient to constitute an attempt. The crime of attempt is fully executed and complete the moment the overt act occurs with specific intent. Subsequent repentance, regret, or desistance cannot undo a crime that has already been legally consummated.

2. Model Penal Code Rule (§ 5.01(4)) (AFFIRMATIVE DEFENSE)

The Model Penal Code recognizes voluntary and complete renunciation of criminal purpose as an affirmative defense to attempt. To establish the defense, the defendant must satisfy two strict requirements:

1. Complete Renunciation: The abandonment must be a genuine, permanent change of heart. It cannot be a mere postponement to a more advantageous time or the selection of an alternative victim.
2. Voluntary Renunciation: The abandonment must originate from genuine moral repentance or change of heart. It is NOT voluntary if it is motivated in whole or in part by:
   • An increase in the probability of detection or apprehension (e.g., spotting a police cruiser down the block);
   • A sudden unanticipated difficulty in committing the crime (e.g., encountering a deadbolt lock that resists tools);
   • Resistance by the victim.